Danziger v. Gottlieb

Laughlin, J.: On the 2d of May, 1913, this court reversed an order denying a motion to punish the defendant for contempt and granted the motion and imposed a fine and costs. (156 App. Div. 571.) The contempt for which the defendant was then fined and on which the second application to punish him was based, was for violating the final judgment herein whereby it was “ ordered, adjudged and decreed that the defendant, his agents, servants and attorneys, be and they and each of them are hereby permanently enjoined and restrained from in any way or manner using the name Lenox in connection with the manufacture and sale of waists and from using the name Lenox upon any tags, stationery cards or other things, or signs of the defendant in connection with the manufacture and sale of waists.” The defendant was then doing business under the name “Lenox Waist Mfg. Co.” The first proceeding to punish him for contempt was based on a violation of said decree by continuing to do business under the same name. Subsequent to the entry of the decree the defendant changed the name of his business to “Lenox Dress Mfg. Co.,” and continued it at the same place under that name. He then ceased to manufacture waists as separate garments at that place;’ but he continued to sell waists there which he had manufactured at another place and ■ designated by tags attached thereto as “ Preferential ” waists. Both the dignity of the court and the rights of a party at whose instance an injunction is issued require that it shall be fairly observed; and the court may and should punish a plain evasion as well as a direct violation thereof. (Mayor v. N. Y. & S. I. Ferry Co., 64 N. Y. 622; Brown v. Braunstein, 86 App. Div. 499; Hildreth v. McCaul, 70 id. 615; Devlin v. Devlin, 69 N. Y. 212; Fischer v. Blank, 81 Hun, 579.) The manufacture and sale of dresses, which includes waists either as separate garments or united with skirts, under the name Lenox Dress Manufacturing Company, was a plain violation of the decree, as was likewise the sale of waists at a place of business conducted under the name Lenox Dress Manufacturing Company, notwithstanding the fact that the waists were manufactured elsewhere and were tagged with the name [781] “Preferential.” It is inconceivable that the defendant could have acted in good faith toward the decree of the court in thus continuing business; and the inference is irresistible that in defiance of the decree of the court he refused to discontinue the use of the name Lenox, and determined to secure whatever advantage or prestige he could in the use of that name in his business in manufacturing and selling waists, either as separate garments or attached to skirts and forming parts of dresses. It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, and that a formal order should be entered adjudging defendant guilty of contempt of court and fining him two hundred and fifty dollars therefor, and providing that he shall stand committed until the same is paid. Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs; formal order directed as stated in opinion. Order to be settled on notice.